Using Comparative Constitutional Law to Resolve Domestic Federal Questions

Childress, Donald E.,, III, Duke Law Journal

"We must never forget that it is a Constitution for the United States of America that we are expounding.... [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." (1)

Of course, we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural differences between their systems and our own. But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem.... (2)

INTRODUCTION

Something startling happened at the United States Supreme Court in June 2003. In Lawrence v. Texas, a 6-3 decision invalidating a Texas statute (3) that made it a crime for two persons of the same sex to engage in certain intimate sexual conduct, (4) the Supreme Court did what it had never done before in the main body of text in such a momentous case. (5) Justice Kennedy, writing for the Court, cited foreign legal precedent--specifically, a decision of the European Court of Human Rights, as well as examples of the legal culture of other nations--in support of the Court's ultimate holding. As Justice Kennedy noted: "[A]lmost five years before Bowers [v. Hardwick, 478 U.S. 186 (1986),] was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case.... The [European] court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights," (6) and that "[o]ther nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct." (7) Given this citation, it now appears that some form of comparative constitutional analysis may be used in the future to resolve domestic federal questions. (8) This use of comparativism, however, may portend a shift of tectonic plates (9)--a shift that has been occurring for some time without sufficient rationalization.

Like Lawrence, the Supreme Court's 2002 decision in Atkins v. Virginia (10) illustrates well this major fault line in contemporary constitutional adjudication concerning whether and when comparative constitutional analysis is appropriate authority to resolve domestic federal constitutional questions. In Atkins, the Supreme Court concluded that the execution of mentally retarded criminals is a cruel and unusual punishment prohibited by the Eighth Amendment. (11) As momentous as this holding is for Eighth Amendment jurisprudence generally, the majority opinion is noteworthy for another reason: it, like Lawrence, appeals to comparative law as persuasive authority to help resolve the constitutional question. While Atkins was not the first time that the Supreme Court employed comparative constitutional analysis. (12) the Atkins decision is salient because it exposes acutely the debate among the Justices concerning the relevance of comparative constitutional law.

Writing for a majority that included Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer, Justice Stevens dropped a curious footnote to bolster the claim that the execution of mentally retarded criminals "has become truly unusual, and it is fair to say that a national consensus has developed against it." (13) Among other authorities, the Court cited a brief filed on behalf of the European Union as amicus curiae in the different case of MeCarver v. North Carolina, (14) in support of the proposition that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." (15) While the majority noted that the practices of other countries were by no means dispositive, the consistency of such practices with legislative evidence provided "further support to our conclusion that there is a consensus among those who have addressed the issue. …

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